Oregon Sen. Ron Wyden wants modern cell phone law

WASHINGTON -- It's hard to be anonymous these days and nearly impossible to be invisible.

That cell phone in your pocket may be indispensable, but it's also a traitor of sorts, continuously tracking your location, not just when you're making calls but as long as it's on. Social networks can broadcast your location to friends, advertisers, merchants and stalkers. Most digital pictures have global positioning data embedded.

All of that information is collected, stored and there for the taking. Increasingly, prosecutors, police and intelligence agencies are seeking the data. Privacy advocates note that in 2009, Sprint provided 8 million pieces of location data to law enforcement. None of the people owning the devices was notified.

That's where the problems begin, because the primary law covering the devices and privacy was written in 1986, before the technology was common and long before cell phones, smart phones and GPS became common fixtures in everyday life.

"This information is very sensitive, and I do not think that most people have the expectation they are carrying around a portable tracking device," said Chris Calabrese, legislative counsel for the American Civil Liberties Union's Washington, D.C., office.

Cell phone carriers aren't happy either. Companies such as Verizon, Sprint and AT&T feel they are "between the dog and the hydrant," said Michael Altschul, senior vice president and general counsel for CTIA, a trade group that represents the wireless communications industry. "At the end of the day, the carriers want clarity."

Courts haven't helped, with judges in various locations issuing divergent -- at times contradictory -- rulings over the standards that government must meet when seeking data that can be intensely personal. Some magistrates have permitted the government to collect the information after insisting it is relevant to an ongoing case. That standard is far lower than probable cause, which some magistrates require. In those cases, authorities must show that the information is directly connected to an ongoing investigation and that probable cause of a crime exists.

Sen. Ron Wyden is among a number of lawmakers working to clarify the rules and remove uncertainty. The Oregon Democrat is teaming with Sen. James Risch, an Idaho Republican, to draft legislation that sets rules and standards that government must meet to collect the information and, to a lesser extent, define how it can be used. The House also has held hearings on the issue.

"There are going to be legitimate reasons for government to go to private companies and request this data," Wyden said in an interview. "But as I got into it, I was struck by the fact there was no legal framework to make clear how this information is protected. It's become a huge legal quagmire."

Phones must track The problem can't be solved by allowing wireless users to disable the location tracking features in their phones. Service providers must know where they are every moment because the phone's signal skips from one stationary cell pod to another during a call. This continues even when the phone is idle. System operators review the data to find holes in service and other problems. Altschul said the records, which are kept anywhere from six months to two years, depending on the vendor, also are kept for tax and billing purposes. Most new-generation phones also have built-in GPS, which is used in many applications and helps police and emergency personnel find people in distress.

In areas blanketed with cell towers, the phone's location, and that of the person carrying it, can be determined within tens of feet by triangulating the signal with the cell towers. GPS is even more precise.

It's a mother lode for police and intelligence officials, allowing them to follow suspects in real time with incredible precision. The information has been used to bust drug rings and to track human smugglers and corrupt officials. It's not surprising that requests for the data are increasing rapidly.

But in drafting legislation, Wyden said he must balance those legitimate needs with those of private, and innocent, individuals. There are also questions of commerce and emergency response.

Though Wyden says he's open to suggestions, he pledges a fairly hard line on the standard that government must meet.

"They have to show cause and a real basis in evidence for this information," he said, adding that such a standard has been required for other purposes for many years and is well understood.

Wyden's model would essentially follow existing law governing wiretaps with regard to court authority and penalties for violating the rules. There would be exceptions in time of war and flexibility to act in an emergency with the understanding that a retroactive warrant would be sought. The privacy protections would extend only to U.S. citizens. Foreign nationals would have far fewer protections.

The legislation would also provide criminal penalties for surreptitiously using an electronic device to track a person's movements. That feature is aimed at hackers and stalkers. For instance, if a woman's ex-husband taps her phone, he is breaking the law. Wyden would treat hacking the woman's GPS to track her movements as a similar offense.

At the same time, some acts would be expressly allowed. The Federal Communications Commission, for example, requires location data to be freely offered to police and rescue officials during 9-1-1 calls. That capability has saved lives and is widely supported. Wyden said his legislation would not touch or diminish that authority.

Policy not followed The federal Justice Department, meanwhile, splits the question. A spokeswoman said the department recommends that prosecutors and police obtain search warrants before collecting location data that offer a real-time look at a person's movements. Historical data showing movements in the past can be granted with a lower legal standard, the Justice policy says.

But the policy isn't rigorously enforced, and U.S. attorneys as well as local prosecutors have been allowed to access real-time location information after meeting much less rigorous standards.

In June, Marc Zwillinger, a Washington attorney who represents wireless providers, told a House subcommittee that he frequently tells U.S. attorney's offices around the country that their requests and subpoenas violate Justice Department policies.

"And sometimes," he said, "I hear back, 'Oh, do you mean those folks in Washington?' To which I say, 'Yes, and you should call them.' And they say, 'Well, our boss is a U.S. attorney, and he's been confirmed by the Senate, and we will do things the way we do things.'"